SUMMER 2019 The Summer of Torah, Hesed, and Charity

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LIGHTS OUT

By: Rabbi Max Sutton



Bobby, the owner of a construction company for commercial properties, hired the services of Joe’s security company to do surveillance and protect an active work site. The service provided included two security officers who were required to patrol the property throughout the night in order to protect the valuable equipment from theft. As an additional precautionary measure, Bobby installed hidden cameras around the property to identify a thief in the event equipment was stolen. After five months of payment to Joe’s security company, Bobby reviewed the video of the camera, and much to his dismay detected that nearly every night the two security officers fell sound asleep for most of the night shift. Bobby was appalled, and immediately stopped payment on his last check to Joe. In Bet Din, he demanded a refund for the previous five months of payment as well. Joe countered that his workers were at the site, nothing was stolen, and as a result he is not reimbursing Bobby with any funds. Additionally, he expects Bobby to honor the last check, which he wrongfully cancelled. In Bet Din, Bobby explained that he did not pay for security officers to sleep on the property, but rather to patrol and thereby protect the equipment.

Does Bobby have to pay Joe the last payment? Is Joe liable to reimburse Bobby the payments he received? How should the Bet Din rule, in favor of Bobby or Joe, and why?

TORAH LAW

According to the ruling of the Shulhan Aruch a paid watchman is responsible to protect the item he is being paid to watch. If he fails to do so, he is liable to reimburse his employer in the event the item is stolen or lost. Unlike an unpaid watchman, who is only liable in case of negligence, a paid watchman is held to a higher standard of accountability. If, however, a thief poses a physical threat and subsequently steals the item, a paid watchman is absolved from liability. A Bet Din will evaluate whether a paid watchman performed his duties in compliance with industry standards prior to submitting a decision.

Leading halachic authorities debate whether a watchman is entitled to payment of his wages in the event the item he was protecting is stolen or lost. Some opinions rule that a watchman forfeits his wages in the event the item is stolen, since he failed to successfully protect the item from theft. According to this opinion, even if he fulfills his obligation and reimburses the owner for the stolen item, he is not entitled to his wages. This view seemingly understands that the wages of a watchman are for his toil and sweat as an employee. If he fails to successfully protect the item accordingly, he is liable for its loss and he forfeits his wages as well. In short, the opportunity to earn an income is primarily contingent on his efforts and successful labor.

According to the above opinion, it stands to reason that if it is proven that the watchman neglected his job by ignoring his basic responsibilities he is surely not entitled to his wages. Hence, even if the item entrusted with a watchman is not stolen or lost and subsequently returned to its owner, if the watchman did not labor as an employee, he is not entitled to his wages.

Other opinions differ and rule that in the event an item is stolen from a watchman, he is entitled to his wages. The underlying reasoning behind this view is that since a watchman assumes liability for theft from the onset, his wages serve as compensation for undertaking such a responsibility. Since his wages are in lieu of his assumed liability, he is clearly entitled to them in the event the item is stolen. Although the watchman failed to effectively labor to prevent the theft, nevertheless, he is not required to forfeit his wages. His wages were paid to him to guarantee the return of the item or its value in case of theft, and not for his work as an employee.

According to this latter view, it stands to reason that although the watchman did not perform his basic duties and neglected the item, he is, nevertheless, entitled to his wages. Hence, in the event the item was neither stolen nor lost on account of the watchman neglecting his job, he is nonetheless eligible to receive his wages.

In the event a watchman is posed with a physical threat to release the item over to others, he is not liable for its loss, and is by all opinions entitled to his wages prorated until the time of the theft.

When there is a major halachic debate between leading Torah authorities a Bet Din will not exact payment from the party that maintains possession of their funds.

A Matter of Controversy

Our Bet Din ruled that Joe is not required to reimburse Bobby for the five months his security officers were sleeping on the job. However, Bobby is likewise not required to pay Joe for the final payment he cancelled. Since the matter is a point of controversy between leading halachic authorities, the proper ruling is to enable each party to maintain possession of the funds they presently hold. As mentioned in Torah law, some opinions view the wages of a watchman as compensation for assuming responsibility to pay for the item in case of theft. Hence, although the security officers fell asleep on the job, Joe was nevertheless responsible if any of the equipment were stolen. He was therefore not required to reimburse Bobby for the five months of pay, and relied on the opinion that rules in his favor. On the other hand, numerous opinions view the wages of a watchman as compensation for his toil and labor as an employee. Hence, since Joe’s workers did not fulfill the basic responsibility of their job description, Bobby can rely on this latter opinion and withhold the last month’s payment.